Cablevision’s amicus brief asking the U.S. Court of Appeals in New York to deem Aereo illegal could sting the fledgling Internet streaming company. Aereo and its defenders frequently cite a case involving Cablevision to justify the service. The court in 2008 agreed with Cablevision’s defense of its Remote Storage DVR technology (RS-DVR), and rejected broadcasters’ copyright infringement arguments. Judges said that the RS-DVRs operate just like home DVRs, even though they store programs on a central server instead of a set top box. Aereo, which is backed by IAC/InterActiveCorp chief Barry Diller, says the same logic applies to its service. Aereo says it rents antennas to subscribers so they can receive free, over-the-air broadcast signals — just as they could at home — before it streams the programming to them via the Internet. But Cablevision says there’s a big difference between its RS-DVRs and Aereo: “Cablevision pays statutory licensing and retransmission consent fees for the content it retransmits, while Aereo does not,” the brief says.

The key question in this case is whether Aereo interferes with broadcasters’ exclusive right to offer their programming to the public, or whether it provides a private service that merely enhances the experience of consumers who already legally receive the shows. “Aereo’s system falls on the public performance side of that line,” Cablevision says. Even though each subscriber rents a separate antenna (they’re about as big as a dime), Aereo “offers to retransmit broadcasts ‘to the public’ in the same sense that a hotel chain offers hotel rooms to the public….The fact that rooms are used on a one-at-a-time basis, and are not available to others once occupied by a guest, does not change the fact that the hotel is offering its rooms ‘to the public.'”